What Does It Mean that Disabled Employees Get "Preferential Consideration" for Open Positions?

Imagine this situation: You’re in charge of HR for your company. Employee #1 is returning from a disability-related leave of absence, but her position is no longer available (assume that this wasn’t FMLA/CFRA or pregancy leave which usually require you to put the employee back in her old job). There is, however, an open position that Employee #1 qualifies for. But Employee #2 is better qualified for that open position and, while there’s no formal seniority plan, she’s been there longer.

The manager will undoubtedly press for the better qualified candidate. Do you have to tell the manager to take the less-qualified employee returning from a disability leave?

Under the latest DFEH regulations, and case law that preceded them, the answer is “yes.” Giving the employee a list of open positions and telling her to apply for any that interest her is not an accommodation. She already had that right. According to the regs:

The employee with a disability is entitled to preferential consideration of reassignment to a vacant position over other applicants and existing employees. However, ordinarily, an employer … is not required to accommodate an employee by ignoring its bona fide seniority system absent a showing that special circumstances warrant a finding that the requested “accommodation” is “reasonable” on the particular facts, such as where the employer … reserves the right to modify its seniority system or the established employer … practice is to allow variations to its seniority system.

While the regulations don’t define “preferential consideration,” there are cases (both from California state courts and the 9th Circuit) that go so far as to say:

Reassignment means that the employee gets the vacant position if s/he is qualified for it. Otherwise, reassignment would be of little value and would not be implemented as Congress intended.

As I’ve said before, the disability discrimination laws require more than treating everyone equally. The obligation to reasonably accommodate means that some employees will get advantages that others don’t and employers are expected to bear the expense and inefficiencies that this entails. Employers that don’t understand the extent of that obligation expose themselves to costly litigation and government investigations.

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